NEWS

Feds Want Indefinite Sentence for Man Who Won’t Hand Over Passwords

Francis Rawls is an ex-Philadelphia police sergeant accused of child-porn related crimes. Federal prosecutes believe that evidence for this exists on two encrypted hard drives that Rawls says he cannot remember the passwords for.

On Monday, US federal prosecutors acting on behalf of the US government urged the 3rd US Circuit Court of Appeals of Philadelphia to jail Rawls indefinitely on grounds of contempt of court, “until such time that he fully complies” with the decryption order.

Any such demand would normally be considered in violation of the Fifth Amendment, which protects individuals from being forced to incriminate themselves. The prosecutors, however, claimed that this did not apply in this case, because the existence of child pornography on the drives was a “foregone conclusion.” They insisted that,

This is not a fishing expedition on the part of the government.”

Um… so if it is a “foregone conclusion” that Rawls is guilty, why do the feds not simply charge him and put the evidence in front of a court of law? This is something they have declined to do.

The answer is clearly that they do not have enough evidence to convict the man, and are hoping that the hard drives will provide it. This push to access the hard drives, therefore, clearly is a fishing expedition!

According to the government,

“A subsequent forensic exam of his Mac Pro computer revealed that Doe had installed a virtual machine (software that emulates a separate computer within his computer). Within the virtual machine the examiner found one image of what appeared to be a 14-year-old child wearing a bathing suit and posed in a sexually suggestive position. There were also log files that indicated that Doe had visited groups titled: “toddler_cp,” “lolicam,” “hussy,” “child models – girls,” “pedomom,” “tor- childporn,” and “pthc,” terms that are commonly used in child exploitation.

The exam also found that Freenet, the peer-to-peer file sharing program used by Doe to obtain child pornography from other users, had been installed within the virtual machine. The exam showed that Doe accessed or attempted to access more than 20,000 files with file names consistent with obvious child pornography…and that he used the external hard drives seized by Delaware County detectives to access and store the images.

This sounds pretty damning, so again the question arises: why has Rawls not been charged on the basis of it? If insufficient evidence exists, then the law dictates that he be released.

In fact, Doe had multiple layers of password protection on his devices, and he always entered his passcodes for all of his devices from memory. Doe never had any trouble remembering his passcodes (other than when compelled to do so by the federal court), never hesitated when entering the passcodes, and never failed to gain entry on his first attempt.

Again, this sounds quite convincing.  The crimes for which he is accused are hideous, so he should certainly be monitored very closely in the future, but the principle is very simple: you can only put someone in jail if you have enough evidence to convict them!

The prosecuters are basing their demands for indefinite imprisonment on grounds of contempt of court on the 1789 All Writs Act, a 230-year-old catch-all piece of legislation that simply lets a court order someone to do something (in this case to hand over his passwords). It is the same legislation that the FBI cited in its recent demands that Apple decrypt a San Bernadino shooters iPhone. The encryption used on the disks (and which the feds appear unable to open) is clearly Apple’s FileVault.


Douglas Crawford I am a freelance writer, technology enthusiast, and lover of life who enjoys spinning words and sharing knowledge for a living. Find me on Google+

Related Coverage

More

3 responses to “Feds Want Indefinite Sentence for Man Who Won’t Hand Over Passwords

  1. I think you are misinterpreting and confusing the right against self incrimination under the Fifth Amendment with fourth amendment searches conducted through a valid and legal court order.

    These situations I view as no different than having paper files in a filing cabinet, it just happens that instead of these records being paper in form, they are electronic and stored on computer hardware. If the government got a legal search warrant from a court, then a person is legally obligated to turn the records over. This would also apply to documents or records in a civil case with a motion for discovery. Prior to the current cases about the iPhone, no one would have wondered or questioned if documents and records stored in paper form would be subject to court orders to produce them or thought that turning over paper records was somehow a form of self incrimination.

    For some reason people now seem to believe that they should be allowed to store anything they want in electronic form and it can never ever be subject to discovery, even after a valid court order has issued, either search warrant or motion for discovery. It is as though electronic forms of records are now being treated and given a special exemption from discovery or search warrants, for something that has never happened before for any other kind of record. In civil cases, discovery is the foundation on which everything else rests for a case. In many discovery situations, once all of the records are produced and examined by both sides, many cases settle or are withdrawn since both sides usually have a good idea what would happen with a trial. If we allowed electronic records to never be searchable or subject to discovery, people and companies could avoid any liability for their actions by putting them in electronic form and preventing anyone from ever looking at them, and then saying, ‘well you have no proof’.

    The additional interesting point is that the man in the cite case claims he is unable to access the drives because he ‘forgot’ the passwords. The problem is that unless the government can prove that he is lying, then they probably can’t keep him in jail indefinitely and will have to release him at some point, unless they can prove that he is lying. If the government can prove that illegal stuff is on the drive or the computer was used in illegal activity, they can probably store the drives indefinitely and never return them to the guy. There is also the possibility that if the government releases the guy on the condition that he really is telling the truth about not knowing the passwords, but then later accesses the drive he could be rearrested for lying to the court.

    This situation with illegal electronic images on the drive I liken to a typical question some law graduates would be asked years ago when interviewing for a job with any district attorney’s office as an assistant district attorney. The situation is that a police officer made an arrest of someone in their car, found illegal drugs, but there is a problem with the arrest. The question for the applicant would be, what would you do as an ADA? Many applicants would go through all kinds of long legal theories as to how and why they would try ‘to make the arrest stick’, but the correct answer would be to keep the drugs and release the person since you were not going to be able to do anything with the arrest anyways and would just be wasting the courts time.

    Louis J Desy Jr

    1. Hi Louis,

      Thank you for that in-depth and well considered response. The way that I see it is that the Fifth Amendment protections against self-incrimination were introduced as a response to the widespread use of torture at the time in order to extract information and confessions. If the accused in this case refuses to talk, and there is otherwise not enough evidence to convict him, then he should be released under the Fifth Amendment – what else are you going to do, torture him or jail him indefinitely until he does talk (and remember, it is possible that he is telling t he truth, and does not remember his passwords)?

      >If the government can prove that illegal stuff is on the drive or the computer was used in illegal activity, they can probably store the drives indefinitely and never return them to the guy.

      If the government can prove such then it should charge him, and present the evidence in front a court of law.

      > There is also the possibility that if the government releases the guy on the condition that he really is telling the truth about not knowing the passwords, but then later accesses the drive he could be rearrested for lying to the court.

      Agreed. In the meantime, if the guy is indeed a kiddie-porn porn pervert, then he will almost certainly re-offend at some point. At which time the police will hopefully be able pounce and convict him using strong (and legally obtained) evidence.

    2. Louis,
      You present a cogent argument that I have been debating with myself (although I am leaning toward the opposite conclusion to yours).

      >These situations I view as no different than having paper files in a filing cabinet, ….<
      This is an inaccurate comparison. Plain papers in a file cabinet would be equivalent to unencrypted files on a computer. Police produce a search warrant, and they can view all of those that they want. However, encrypted files on a computer would be equivalent to papers that written in a secret code. Can a defendant be compelled to supply the secret code to allow translation of the material? I don't know the answer to that, but I hope the answer is NO!

      I found one interesting discussion that is relevant and has links to consider: http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/
      In that blog, you find the quote of SCOTUS Justice Stevens:
      "A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed."

      My thoughts are that in order for all of us to have continued use of our freedoms, we need to be able to keep our passwords to ourselves. One of the sacred foundations of our justice system is that we apply justice without prejudice– even when that means a low-life pile of organic matter like a child pornography watcher will go free. We cannot be forced to use our own minds to incriminate ourselves.

      On a side note, I hope they get the guy.

Leave a Reply

Your email address will not be published. Required fields are marked *